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Indigenous Land Rights: Brazil

Constitutional land rights for Indigenous people in Brazil

June 6, 2023
Author: Symphony Chau

Indigenous rights are federally recognized under the Brazilian constitution enacted in 1988, with land rights explicitly protected and mandated for demarcation (which provides an explicit land/property boundary and ownership designation) under Article 231. With an estimated Indigenous population of 900,000 and identified Indigenous lands representing a significant portion of Brazil’s land mass. Article 231 and its mandate is important for Indigenous self-determination, reparations from centuries of colonization, and ecological conservation.

Identified Indigenous lands represent about 13 percent of Brazil’s land mass, which is equivalent to about 106.7 million hectares, focused primarily in the Amazon, which come out to 462 different recognized lands.1 During the 1970s, a political movement around pro-Indigenous rights raised the profile for Indigenous and environmental issues, organized by an Indigenous rights coalition that included domestic and international non-governmental organizations, activists, and leftist politicians. Decades of struggle for recognition domestically, combined with an international advocacy campaign, culminated in the 1988 Constitution, which acknowledges that Indigenous peoples are the original inhabitants of Brazil.

Specifically, Article 231 of the 1988 Constitution recognizes “Indigenous people as the first and natural owners of the land and guarantees their right to land.”2 Through the Constitution, the federal government is mandated to demarcate land, which provides a formal guarantee, including protective status, as well as make efforts to preserve traditional Indigenous lands through formal legal land tenure processes. Since 1988, Brazil has made further international commitments to Indigenous land sovereignty, including being a major supporter and signatory of the 1989 ILO Convention No. 169 on Indigenous and Tribal Peoples Rights3 and the United Nations Declaration on the Rights of Indigenous People (UNDRIP) in 2007.4

Implementation

Federal demarcation of Indigenous land is under the oversight of FUNAI (Fundação Nacional dos Povos Indígenas), which sits under the Ministry of Justice. The demarcation process has been updated several times: the last update was through Decree 22 on February 4, 1991, and includes seven stages: research, discovery, disputes, ministerial declaration, physical demarcation, homologation, and registration. Decree 22 includes guidance on not only the approval process, but provides the imperative to resettle non-Indigenous occupants (if any).5 After a territory receives demarcation status, land access from outsiders is restricted.

During the presidency of Bolsonaro (2019-2022), decision-making around the demarcation of Indigenous land was transferred to the newly created Ministry of Human Rights, Family and Women and the Ministry of Agriculture. The executive order was then reversed through congressional pushback to keep the agency under the jurisdiction of the Ministry of Justice in May 2019.6 The newly elected government (2023) plans to rebuild the agency and restart stalled demarcation processes, along with other priorities to serve the needs of the 900,000 Indigenous peoples in Brazil.7

Cost

Data available on FUNAI’s budget dating back to 2018 shows a budget of approximately BRL 600 million (USD 111 million) per year—with expenses broken down between the following categories (from the largest to smallest): general administration, assistance to Indigenous people, special charges, standardization and inspection, worker protection and benefits, and “others.” However, the budget was not fully utilized over the years.8 Current data for 2023 shows that the agency has BRL 90,000 (USD 18,038.24) for demarcation projects, which equates to .001 percent of the 2023 federal budget.9 In an interview with InfoAmazonia, the new Minister of FUNAI, Joenia Wapichana, calls for the Amazon Fund and other sources of funding to bolster the current demarcation budget.10

Assessment

Strengthening federal recognition and demarcation of Indigenous lands not only provides cultural and spiritual benefits, but also advances other rights for Indigenous people—including food access, security, health, education, justice—who face disproportionate social, environmental, economic, and racial inequalities. For example, a 2023 environmental study found that conferring formal tenure rights for Indigenous lands—through demarcating Indigenous territories, and ensuring they have full legal oversight over their lands—are both reducing deforestation, and increasing reforestation in the Atlantic Forest, a region known for particularly high rates of deforestation. Consequently, newer studies are finding a positive link between Indigenous rights/sovereignty over traditional lands and the preservation of nature.11
While there was traction in the demarcation process when the constitution came into effect in 1988 through to 2016, there are still 871 Indigenous lands pending official recognition.12 Indigenous rights protected in the constitution have been expanded and contracted at various points since, depending on the administrations in power. For instance, progress greatly stalled when former president Dilma Rousseff was impeached and under former president Michel Temar’s administration (2016-18), only one approval of Indigenous lands was approved, which ended up being suspended by judicial decision. During the Bolsonaro administration (2019-2022), not only were there no new land approvals, but an active anti-Indigenous sentiment in policymaking decisions13 (such as rampant illegal mining and agribusiness) along with land dispute-related violence and deforestation.14 There is now pressure on newly-elected president Luiz Inácio Lula da Silva to follow through on campaign pledges—such as, a commitment to Indigenous sovereignty via land demarcation. This includes a call to action from Indigenous peoples and rights activists to demarcate “13 new Indigenous territories that have cleared all regulatory steps and require nothing more than presidential approval to be official.”15 (Update as of April 28, 2023: President Lula announces six demarcated Indigenous territories as the initial step in fulfilling his campaign pledges).16
Critics also emphasize the need to strengthen the implementation of Article 231 in practice, and to use protest methods such as “land occupation and social demonstrations” to reclaim traditional territories when the official process has been slow to move from both private businesses (primarily agribusiness) and the state.17

References

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